United States District Court, D. Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the November 4, 2019,
Recommendation of United States Magistrate Judge Michael E.
Hegarty (ECF No. 47) to deny Defendants' motion to
dismiss (ECF No. 15) and to deny as moot Plaintiff's
motion for leave to file sur-reply (ECF No. 42). The Court
accepts and adopts the recommendation, and it is incorporated
herein by reference. See 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b).
recommendation advised the parties that specific written
objections were due within fourteen days after being served
with a copy of the recommendation. (ECF No. 47 at 20 n.2.)
No. party objected to the recommendation, and the time to do
so has expired. “In the absence of a timely objection,
the district court may review a magistrate judge's report
under any standard it deems appropriate.” Summers
v. State of Utah, 927 F.3d 1165, 1167 (10th Cir. 1991).
Civ. P. 12(b)(2) allows a defendant to move to dismiss a
complaint for lack of personal jurisdiction. To defeat such a
motion by establishing specific personal jurisdiction, a
plaintiff must first show that the defendant has
“minimum contacts” with the forum state.
Intercont'l Inc. v. Bell Atl. Internet Sols.,
Inc., 205 F.3d 1244, 1247 (10th Cir. 2000). The
“minimum contacts” standard is met if the
defendant has purposefully directed its activities at
residents of the forum and the litigation results from
alleged injuries that arise out of or relate to those
activities. Id. If the defendant has sufficient
“minimum contacts” with the forum, the Court then
considers whether exercising jurisdiction is consistent with
traditional notions of fair play and substantial justice.
Id. A five-factor test is used to determine whether
the exercise of jurisdiction is reasonable. Id. at
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court accepts as true all well-pleaded factual
allegations in the complaint, views those allegations in the
light most favorable to the plaintiff, and draws all
reasonable inferences in the plaintiff's favor.
Brokers' Choice of Am., Inc. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v.
Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint
must allege a “plausible” right to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14
(2007). The Court is “not bound to accept as true a
legal conclusion couched as a factual allegation.”
Id. at 555 (quotation omitted).
proceed pro se; thus, the Court liberally construes their
pleadings. Haines v. Kerner, 404 U.S. 519, 520-21
(1972). The Court, however, does not act as Defendants'
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
develops, manufactures, markets, and sells grips/stands,
mounts and other mobile device accessories under the
PopSockets brand. (ECF No. 8, Am. Compl. at ¶ 7.)
Plaintiff distributes its products through its website and
through a network of authorized sellers. (Id. at
¶ 8.) Defendants, who are not authorized sellers,
operated a storefront on the Amazon website known as
“Planoseller2” that was subsequently changed to
“TexasDeals2.” (Id. at ¶ 106.)
Defendants purchased Plaintiff's products from national
retailers and resold them online. (ECF No. 15 at 8.)
Plaintiff sent Defendants cease-and-desist letters demanding
that they stop selling products bearing its trademarks but
did not receive any response. (ECF No. 8 at ¶¶
complaint, Plaintiff asserts seven claims for relief based on
trademark law and other causes of action. Plaintiff alleges,
generally, that Defendants' unauthorized sales of its
products harmed its brand because the products Defendants
sold were not subject to Plaintiff's quality control
requirements, were not covered by Plaintiff's warranty,
and prompted negative online reviews by customers.
proceeding pro se, moved to dismiss the complaint, and the
motion was referred to the magistrate judge. The magistrate
judge construed the complaint as a motion to dismiss under
Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction and a
motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim. The magistrate judge then issued a report and
recommendation to deny Defendants' motion.
filed a motion for leave to file a sur-reply, which was also
referred to the magistrate judge. Because the magistrate
judge's recommendation on the motion to dismiss did not
rely on the briefing related to Plaintiff's motion, he
recommended that the Court deny it as moot.
respect to the motion to dismiss, the magistrate judge first
concluded that the Court has specific personal jurisdiction
over Defendants. The magistrate judge noted that district
courts have routinely found that a defendant's sales over
the internet to customers in the forum state provide a basis
for the court's exercise of personal jurisdiction. (ECF
No. 47 at 9 (citing cases)).) This district has followed that
trend, see, e.g., Otter Prods., LLC v. Big
Birds, LLC, No. 19-cv-00626-DME-KLM (D. Colo. Aug. 9,
2019), and so has this Court, see, e.g., Otter
Prods., LLC v. Phone Rehab, LLC, No. 19-cv-00206-RM-MEH
(D. Colo. Dec. 18, 2019). Thus, the magistrate judge found
that Defendants purposely directed their activities at
Colorado residents through their online sales of
Plaintiff's products. The magistrate judge further found
that Plaintiff's alleged injuries arose out of those
activities and that because Defendants received
cease-and-desist letters from Plaintiff, Defendants were
aware their conduct was harming Plaintiff in Colorado. And,
after balancing the relevant factors to determine whether
exercising jurisdiction offend traditional notions of fair
play and substantial ...